Retained Rights of Residence

May 23, 2016

The European case of Kuldip Singh and its effect on ‘Retained rights of Residence’ for non-EU nationals and the issue of ‘Self-sufficency’ in European cases.

The recent European Court decision of Kuldip Singh (Case C 218/14) is an important case for 2 reasons. It provides clarification (to some extent) on 2 issues that often crop up in relation to EEA law. The first issue being as to when non-EU citizens might retain rights of residence if they are divorced and the second issue being that of self-sufficiency in EU law.

It is a well known fact that EU free movement law does not only extend to EU citizens but also to their non EU family members . Such family members are often known as “third country nationals” given that they do not come from the UK or the European Union but from a third country which falls outside the EU. An example could be a where a German citizen is married to a Pakistani citizen. In such a circumstance, EU free movement law gives the Pakistani woman a right to reside with her husband in EU countries other than Germany.

The intended purpose of the EU free movement rules is to make it easy (and to encourage the free movement of people within the EU). Clearly if people cannot settle down with their family members then they may be unenthusiastic about moving form their own country in the first place.
The main requirement is that the relationship between the EU national and the non EU national is genuine and that the EU citizen is a ‘Qualified Person’ under EU law. A qualified person means that they are working, self employed, self-sufficient or studying.

It is not permissible to apply additional rules to the EU rules. For example a minimum income requirement or language tests or a requirement that the person joining the sponsor has proper immigration status.

The apparently lax aforementioned requirements can sometimes evoke a bit of resentment, for example because a British Citizen may feel that it is easier for a EU national (who is not British) to call their spouse and other family members to the UK than it is for a British Citizen. This is because the British Citizen will be sponsoring their family member under the domestic UK ‘immigration rules’ and therefore their spouse must meet amongst other things all the detailed requirements under the UK’s domestic Immigration Rules.

This is of course unless they make use of the Surinder Singh route, a route which is becoming more and more popular in its own right. The Surinder Singh route normally consists of a British Citizen exercising free movement rights and moving to another EU country e.g. Ireland and then calling their spouse over using EU law rather than domestic UK immigration law.

It is also pertinent to mention that a non EU national who racks up 5 years of residence in line with free movement laws, will automatically acquire the right of permanent residence. This permanent right of residence is only lost if they are continuously absent for 2 years or more from the EU country.

It is important to note though, that within the first 5 years, EU rights flow from the EU citizen to their non-EU family members through the EU Citizen’s economic activities and therefore the non-EU national has no independent right of residence.

In particular if the relationship ends or the EU citizen loses their job or leaves the UK, the non EU family member is potentially left with no right to reside and will probably have to return to their home country. There are however circumstances where non EU family members will retain a right of residence and some protections are built into the rules for non EU nationals.

Differences exist in the interpretation of the protections and some countries take a more stringent view of the rules than others. In the UK the protections are known as “retained rights of residence” and dealt with at paragraph 10 of the Immigration (EEA) Regulations 2006.

These rules are themselves derived from Article 12 of Directive 2004/38/EC of European Law. There are however several criteria that need to be satisfied. These include that the marriage has lasted at least 3 years and that the couple resided in the relevant Member State (the UK in this case) for at least 1 year. In cases where the marriage breaks down and ends in divorce, the provisions have been interpreted as meaning that if the divorce proceedings began before the EU citizen departed from the host country (or stopped work, self employment etc.) then the non-EU national will retain a right of EU residence. However if the divorce papers were served even a day after the EU citizen left the host country then the non-EU national would not have a right of residence and would have to go back to their home country or where they had come from to join their EU family member.

It can be said that the aforementioned rules somewhat arbitrary with no real bearing on real life situations. In reality it means that the rules mean an EU citizen sponsor can dictate (by their actions) whether the non EU national retains a right of residence or not and this depends on when divorce proceedings are initiated.

It is pertinent to mention that where a marriage breaks down and the parties separate but do not divorce, as long as the EU citizen remains in the host country, the right of residence for the non-EU national remains. There is no need for the spouses to be cohabiting for the right of residence to exist. This is apparent from examination of the European cases of Ogieriakhi C 244/13 and Diatta C-267/83.

This in itself though gives rise to a further problem. This issue being that as long as there is no divorce the protections offered by the rules relating to a retained right of residence do not kick in meaning that a ‘separated’ but ‘not divorced’ non EU national has to prove that their EU citizen sponsor is still resident and is still a ‘qualified person’ by either being a worker, being self employed etc. This can be very difficult in reality if the relationship is strained or the couple are living apart and do not have contact.

The European Court of Justice turned its attention to the issue of retained rights of residence in the case of Kuldip Singh Case C 218/14. The Court took a strict textual approach to the question and adopted a strict interpretation of the retained right of residence i.e. that Article 13(2) of Directive 2004/38 needed to be interpreted as meaning that a non-EU national (divorced from a EU citizen) and whose marriage lasted for at least 3 years before the commencement of divorce proceedings, including at least 1 year in the host Member State, cannot retain a right of residence in that Member State on the basis of that provision where the commencement of the divorce proceedings came after the departure of the EU Citizen from the host Member State. This effectively means that there appears an incentive for non-EU national family members who do not have permanent residence and whose relationship is on the rocks to ensure that divorce proceedings are initiated prior to the EU citizen leaving the host country.

The second issue that the Kuldip Singh case addressed is that of self-sufficiency and the source of these funds. It dealt with the question of – ‘whether an EU citizen is considered to have sufficient resources for himself and his family members so that they do not become a burden on the social security system of the host Member State where some of the source of income derives from the non-EU national’.

This is an important issue because the right of free movement is only available for EU citizens in some circumstances and can include where EU citizen’s can show that they are ‘self-sufficient’. In the UK this is at times interpreted as meaning that the source of self-sufficiency must be independent of any non-EU national family member. The Kuldip Singh case calls into question a number of cases, for example the case of Seye (Chen children; employment) France [2013] UKUT 178 (IAC) and various other cases including the Court of Appeal cases of W (China) and X (China) [2006] EWCA Civ 1494 and Liu and Ors v SSHD [2007] EWCA Civ 1275.

In Kuldip Singh the Court refers to the case of Alokpa and Moudoulou C 86/12 and effectively says that Article 7(1)(b) of Directive 2004/38 must be interpreted as meaning that an EU citizen should have sufficient resources for himself and his family members to not become a burden on the social security system of the host State during their period of residence (even where the resources derive to some extent from their spouse who is a non EU-national). The case does not directly deal with the circumstance where all of the EU citizen’s resources derived from a non EU national and leaves the possibility of future litigation wide open.

The above shows that navigation of European laws is not easy and the options available are not always straight forward and it is very important to obtain the correct advice prior to making any application for leave.

The Immigration Department at Wildings Solicitors have assisted many clients. Should you need advice or assistance with any of the issues mentioned in this article or any other immigration matter, please do not hesitate to contact the Wildings Solicitors Immigration Department and we will be happy to speak to you.